How the State Became Homosexist

By Carman Bradley

For millenniums the definition of
marriage has been rooted in a heterosexist worldview. Indeed, tolerance of homosexuality Implies a heterosexist worldview. Now the Supreme
Court has ruled the meaning of marriage can be changed and the Government has
decided to do so. What neither the
Supreme Court nor the Government has told Canadians is that the state’s
worldview must be changed along with marriage redefinition.

“Tolerance” has its origin in the Latin
“tolerare,” meaning “to endure.” The
machinist works within tolerancefrom
design and the doctor speaks of toleranceto pain. The state associates
tolerance with rights given or patience shown to opinions and practices that
may be less than exemplary or in minority. In 1969, the Canadian Government
declared a new level of tolerance towards homosexuals when private sexual acts
were decriminalized. The release of
George Klippert, jailed for gross indecency, typified the genesis of what the
state said would be a “private bedroom”space
for gay or lesbian sexual intimacy.
Just two years before, Justice Minister Pierre Elliott Trudeau described
this new level of tolerance:

Take
this thing on homosexuality. I think
the view we take here is that there’s no place for the state in the bedrooms of
the nation. I think what’s done in
private between adults doesn’t concern the criminal code. When it becomes public this is a different
matter, or when it relates to minors this is a different matter…

The new Houghton Mifflin Reader’s Companion to U.S Women’s History contains
an entry by E. Kay Trimberger which gives the feminist perspective on the need
for the homosexual liberation era that followed: “Sexuality is not private, but is political and related to power.
‘Compulsory sexuality’ is part of a power structure benefiting heterosexual
males at the expense of women and homosexuals.
The inequity is justified by an ideology that sees heterosexuality as
natural, universal, and biologically necessary, and homosexuality as the opposite.”[i]In
the same entry Trimberger further asserts “if
our sexuality is socially constructed it can also be de- and re-constructed.” Here reconstruction is a euphemism for the
assault on heterosexist institutions of family and marriage.

Just as law defines the traditional family, so
changing the law can deconstruct it.
Jodi Freeman, an activist who helped develop EGALE’s[ii]
factum in the ground-breaking gay rights case, Mossup, has written that “rights
litigation can be a useful tool in the pursuit of social change, as part of a
broader strategy.”[iii] In 1990, Didi Herman, Canada’s most
published gay rights lawyer described the assault on heterosexist governance in
stronger terms: “law reform is part of an
ideological battle, and fighting over the meanings of marriage and family
constitutes resistance to heterosexual hegemony.”[iv]According to F.L. Morton and Rainer
Knopff, deconstructing the heterosexist basis of Canadian governance had at
least one huge obstacle – ironically, is was the very Charter which same-sex
proponents now claim as the basis for their marriage right. In The
Charter Revolution & The Court Party, Morton and Knopff write: “To use the Charter as part of such an
ideological battle, gay and lesbian activists had first to overcome the
intentional omission of sexual orientation from the list of prohibited grounds
of discrimination in section 15 of the Charter. They thus began publishing articles advocating that it be added
by way of judicial interpretation.”[v]According to Didi Herman, this
publishing strategy aimed to supply “the
appropriate argument for lesbian and gay litigants to make.”[vi]David Raymond Greener conducted a study
of 22 law review articles discussing the definition of family, all published
since the 1982 Charter. While the
broader literature revealed a lively debate about the merits of the family,
including defenses of the traditional family, the law journal articles were “uniformly critical of ‘familial
ideology’…[especially] the ‘traditional family,” which was portrayed as “the ideological centerpiece of heterosexual
supremacy.”[vii]Morton and Rainer note: “The only serious disagreement in this
literature was whether to seek a partial deconstruction of the heterosexual
definition of family so as to allow homosexual marriage, or to pursue ‘a more
radical deconstruction that aims to abolish any meaningful distinction between
family and non-family.’”[viii]According to Jody Freeman, “recognizing marriage between gay men or
lesbians would revolutionize its meaning.”[ix]

Choosing the judicial system as the battle ground,
human rights as the claimed grievance and sympathetic judiciary as allies has
been the strategy to deconstruct heterosexism and overcome majority
resistance. In just two decades, the
Supreme Court has taken the Charter, which said nothing about “sexual
orientation” when ratified in 1982 (in spite of gay rights lobby), and by a
characteristically elitist and undemocratic process of judicial rulings, has
read homosexual rights into the Charter.
At the 1998 International Human Rights Commission, Justice Rosalie
Abella, described the allied ideological battle: “…unlikecivil liberties,
which re-arranges no social relationships and only protects our political ones,
human rights is a direct assault on the status quo. It is inherently about change.”[x] Here the “status
quo” is “heterosexism” and the “assault”
is on “marriage” and “family.” F.L.
Morton and Rainer Knopff have called the unprecedented levels of ideological
advocacy and politically proactive behavior by the Supreme Court the “Charter
Revolution.”[xi] The goals of the Charter Revolution have
moved well beyond private, public and workplace security and equal monetary tax
benefits for gays and lesbians. The
homosexist constitutional sweep must leave no distinct heterosexual space - no
privileged heterosexual institutions, no tolerance for the heterosexist
point-of-view. And Prime Minister
Martin declares this paradigm of total indifference when he insists that parity
is not enough, only “sameness” before the state will suffice. In February 2005, Prime Minister Martin
said in a speech on Bill C-38 (The Civil Marriage Act) before the House:

…some
have counseled the government to extend to gays and lesbians the right to
‘civil union.’ This would give same-sex
couples many of the rights of a wedded couple, but their relationships would
not legally be considered marriage. In
other words, they would be equal, but not quite as equal as the rest of
Canadians. Mr. Speaker, the courts have
clearly and consistently ruled that this option would offend the equality
provisions of the Charter. For
instance, the British Columbia Court of Appeal stated that, and I quote:
‘Marriage is the only road to true equality for same-sex couples. Any other form of recognition of same-sex
relationships ...falls short of true equality.

Actually, the courts have not been
consistent on the need for “sameness.” In the McCloskey verdict (in
BC), Judge Ian H. Pitfield concluded that marital discrimination against
same-sex couples is justified. He wrote
in the ruling: “The objective of limiting
marriage to opposite sex couples is sufficiently important to warrant
infringing on the rights of the petitioners.
The gain to society from the preservation of the deep-rooted and fundamental
legal institution of opposite-sex marriage outweighs the detrimental effect of
the law on the petitioners.” He
went on to say that equality rights can be overridden by Section 1 of the
Canadian Charter. Judge Pitfield
dismissed other arguments, ruling that, for same-sex couples, the freedoms of
expression or association, as well as mobility rights and rights of liberty and
security are not infringed by the ban on marriage.[xii]

Tragically, for the heterosexual
majority (likely 97 percent of voters, although not all are against redefining
marriage), there now appears to be no democratic way to stop the imposition of
homosexism over our state. For those
who might claim the governing Liberals have duly represented Canadians, while
holding onto to power through Belinda Stronach’s single defecting vote, a brief
review of the facts tells a different story.
A key outcome of the framing of the same-sex marriage decision as the
choice between two exclusive and conflicting worldviews is the clarity this
brings to the dilemma for the centrist Liberal Party. Faced with no plausible middle position, i.e. some mix of
homosexists ideals and heterosexist tenets, the Liberals have been caught
between social conservatives on the right - staunchly heterosexist - and
socialists on the left - resolutely homosexist. The result being, the Liberal Party’s position has flip-flopped
between right and left. Once the
Liberal Government decided to support marriage redefinition the Government’s
strategy became one of escaping accountability for the unpopular left of center
policy by arguing that upholding the Charter gives them no alternative. The Liberal button - “It’s the Charter
Stupid!” - declares the centerpiece of the Liberal pro-same-sex marriage
argument. Tragically, such “rights-based”
propaganda has worked well manipulating public debate by emotion. This “who could be against human rights”
strategy is intuitively appealing and has had the effect of deflecting serious
engagement of the issues. For example,
neither the Liberals nor the Supreme Court have been forthright enough to admit
that marriage redefinition, on the basis of a human rights sexual orientation
argument, must inevitably lead to bisexual marriage access. The fact bisexual marriage is not on the
present legislative agenda is itself proof that marriage redefinition is not a
human rights issue, but an issue of political power. The reality that the Charter, when democratically ratified by all
provinces and the federal government, said nothing about homosexuality and the
fact that a Liberal majority Parliament, in June 1999, ratified the traditional
definition of marriage by 216-55 votes are now out of sight. Moreover, the reality that the Supreme Court
reference did not rule the current definition of marriage unconstitutional has
been disguised. The button’s intended
“self-evident” proclamation also flies in the face of the 35 Liberals who did
not vote for same-sex marriage and the reality that Prime Minister Martin had to
order his 39 cabinet ministers to vote for same-sex marriage regardless of the
majority wish of their constituents.

Indeed, the slim circumstances under which the
Liberals flip-flopped to a pro-same-sex marriage stance was made clear in May
2004, when former Justice Minister Martin Cauchon, gave a speech before a US
homosexual organization in Philadelphia. Equality Forum honored him on the occasion with an award for
his pro-homosexual position. In his
speech Mr. Cauchon admitted that only four individuals in Ottawa were
instrumental in reversing Liberal same-sex marriage policy - himself, Paul
Genest (policy advisor to PM), Alex Himelfarb (Clerk of the Privy Council) and
Morris Rosenburg (Deputy Minister of Justice).[xiii] Before reading the underlining basis for Mr.
Cauchon’s desire to redefine marriage, ask yourself: (1) Is it possible to
stamp out “homophobia” without first getting rid of “heterosexism”? (2) Is it
possible to wipeout “heterosexism” without first eradicating the influence of
orthodox religion? Mr. Cauchon said: “When
I started traveling across the country talking about same-sex marriage, I faced
a lot of opposition of course. When I
was talking to people, trying to understand why they were opposed, I've
realized that there is no valid reason to oppose, and I've realized that,
sadly, there is a lot of homophobia. In
my society there is no place at all for homophobia. And that is why I decided to proceed in making sure we put in
place in Canada, and if we can around the world, a just society based on
equality. Sadly enough homophobia
exists still in Canada, and in other countries around the world.”[xiv] Mr. Cauchon also related that Mr. Genest heavily lobbied
former Prime Minister Chrétien on a daily basis to get his support for same-sex
marriage. Once he got Mr. Chrétien on
side, everything fell into place since Mr. Chrétien ruled as a semi-dictator
over his Caucus and obedient Cabinet.[xv]

Besides himself, Mr. Cauchon singled out the work of
Paul Genest, who was policy advisor to former Prime Minister Chrétien, who,
according to Mr. Cauchon, played "a
key role" in the same-sex marriage question. He and Mr. Genest met on a daily basis to talk about how he
should manage the approach and the strategy on the same-sex marriage issue.[xvi] And in June 2003,
Prime Minister Chrétien announced he would not be appealing lower court rulings
even though marriage law is a federal jurisdiction and the lower courts
were in effect defying state governance; rather the Liberal Government asked
the Supreme Court to make one more “read-in” ruling on what the Charter had to
say about same-sex marriage. In effect,
this process took the polarized and sensitive matter out of the political and
democratic realm and placed the onus for a decision into the hands of the judges,
a majority of whom turn out to have held opinions similar to Justice Rosalie
Abella. Prime Minister Chrétien gave
his articulation of the same-sex marriage issue on August 19, 2003, before a divided Liberal caucus in North Bay. He said:

Circumstances demand that we deal with the issue now
because of very recent court decisions based on the Charter of Rights. The Canadian Alliance has attacked the
courts for years. They attack so-called
judicial activism. It is code for their
profound opposition to the Charter of Rights.
A Charter that was passed by Parliament and that Liberals and all
Canadians respect and cherish. So let
us not fall into their trap on this issue.
This is not about weakening Parliament.
It is not about weakening traditional religion. It is not about weakening the Canadian
social fabric. In fact, it is about
giving Parliament its rightful voice.
It is about protecting religious traditions and rites. It is about giving force and effect to
Canadian values. Values of mutual respect, justice and equality. All of us understand that Parliament must
always act in accordance with the Constitution. In the case of same-sex couples, we need to be guided by how
court after court has been interpreting the Charter of Rights. And the courts have been telling us that the
notion of separate but equal has no place in Canada.[xvii]

Morton and Knopff have given a name to
the coalition of judges and special interest groups promoting judicial
authority over democratic authority, they call the alliance the “Court
Party.” They declare on the matter of
“judicial activism”:

How
did an institution that for more than a century occupied an important but
secondary role in our political system suddenly become such a pivotal
player? Most commentators attribute
this institutional and political revolution to the 1982 entrenchment of the
Canadian Charter of Rights and Freedoms.
While there is more than a grain of truth to this explanation, it is, on
its own, overly legalistic. Parchment
barriers do not cause revolutions; leaders, elite cadres, and their supporters
do. Judges themselves are the most
prominent leaders of the Charter Revolution.
The judges deny this, claiming that they do only what they are mandated
to do by the constitutional documents.
Nonsense! More often than not
they make up the law as they go along…Judges did not - could not – make the
Charter revolution alone. At every turn
their innovations have been promoted and supported by a coalition of societal
interests that strategically straddle the state-society divide. Despite important differences, these groups
share a common interest in enhancing judicial power. Accordingly, we call this coalition the Court Party…[xviii]

On June 26, 2003, the Ontario Law Society sponsored a
panel (“Court Party” reunion) consisting of the lawyers who had successfully
argued for same-sex marriages in the Ontario courts. Attending this panel and the reception afterwards were invited
guests including the judges who decided in favour of same-sex marriage and representatives
of homosexual advocacy groups, plus organizations offering services for
homosexuals and lesbians as well as representatives from all three levels of
government. On the lower court level,
Mr. Justice Harry LaForme, who wrote the majority decision in support of
same-sex marriage, was present. At the
reception, Chief Justice McMurtry thanked Madam Justice Claire L'Heureux Dubé
for her excellent work on homosexual rights.
He stated: “Claire L'Heureux Dubé advocated gay rights in Mossop and
added dignity to equality in Egan.
I would like to refer, briefly, to her dissent in Mossop, in 1993, ten
years ago. I think her dissenting opinion can be said to be reflected in our
recent same-sex marriage decision in the Ontario Court of Appeal.” In her response, Madam Justice L'Heureux
Dubé said:“… courts have been at the forefront of this [homosexual] evolution not
to say revolution. It's fascinating that the courts played a unique role…It is
not me you should celebrate. It is the
Chief Justice [McMurtry], and Gillese and MacPherson that have made history…
the Ontario Court of Appeal handed out, I am told, as I have not read it yet,
one of the most perfect decisions on an issue which was difficult. It took a
lot of courage… Canadian law owes them a great deal.”[xix]

Actually, analysis of funding of the legal challenges
by gay activists reveals that the homosexist lobby owes as much to the Canadian
taxpayer, who has involuntarily paid most of the bills for their legal
challenges, while heterosexist defenders of marriage are obliged to raise their
own funds. Chief Justice Roy McMurtry
of the Ontario Court of Appeal not only decided that traditional matrimonial
law in Canada is unconstitutional; he ordered that the federal treasury pay the
costs of the homosexual challengers. $645,000 went to Toronto Lawyer Martha
McCarthy who acted for several of the homosexual challengers, and $409,162 to
Toronto lawyer R. Douglas Elliot who argued the case on behalf of the
Metropolitan Community Church. EGALE
(Equality for Gays and Lesbians Everywhere) received generous financial support
from the Court Challenges Program for its legal challenges on same-sex
marriage. The Court Challenges Program
also paid the costs of the Canadian Coalition of Liberal Rabbis for Same-sex
Marriage to be intervenors. The National
Action Committee on the Status of Women and the National Film Board are listed
on EGALE's website as sponsors of their efforts. According to documents obtained under the Access to Information
Act, hundreds of thousands of dollars flow annually from NAC to Lesbian
advocacy groups.[xx]

At the same Ontario Law Society event, Cynthia
Peterson, lawyer in the Ontario case, said of the Liberal same-sex marriage
strategy:

The reference [to the Supreme Court of Canada] in my
view is a political necessity, not a legal one. The government decided not to appeal the decisions, which I
commend them for, but we know even within the governing party, there isn't
unanimous support for that decision. So
there is a lot of political pressure on the government....The reference is to
get the approval of the Supreme Court of Canada, so that when it goes to the
House for a free vote ... they can say that the Supreme Court has said that
religious freedoms will be protected.
There is a real political value in that...the other political value is
in the Alberta situation...we know the government there is doing everything
possible to prevent same-sex marriages.
But if we can get assistance from the Supreme Court of Canada in the
reference to either pre-empt the battle altogether or use it to ensure
uniformity across the country, then I think there will be real value there as
well ... I'm pretty confident that this is more a political necessity than a
legal one and that it will not in any way undo any of the legal victories that
we've won.[xxi]

And how did the Court Party act out its
proverbial finest hour? In making their
December 2004 judgment, the Supreme Court decided that neither the Constitution
Act of 1867, nor the current Charter, entrenches the definition of “marriage”
as heterosexual. The Court said, “The ‘frozen concepts’ reasoning runs
contrary to one of the most fundamental principles of Canadian constitutional
interpretation: that our Constitution is a living tree which, by way of
progressive interpretation, accommodates and addresses the realities of modern
life.”[xxii] Although the Supreme Court ruled
that Parliament has exclusive authority “respecting
certain aspects of legal capacity for marriage,” and that “the word ‘marriage’ does not exclude
same-sex marriage,” the Court refused to answer the Government’s Question
#4 - “Is the traditional definition of marriage consistent with the
Charter?” Paradoxically, the Court
defended its decision in part because of the decisions taken by five lower
(provincial) courts to overturn the (federal) marriage law. In this “Catch 22” dynamic, the Court joined
with the Liberal Government in asserting that the same-sex litigants in these
rulings “have relied upon the finality of
the [provincial] decisions and have acquired rights which are entitled to be
protected.” Alberta’s position was largely ignored. The Supreme Court chose not to answer
Question #4 because a response of “no”“throw the [proposed] law into
confusion ” and “the lower courts’ decisions in the matters giving rise to this
reference are binding in their respective provinces.” The Supreme Court concluded, “These circumstances, weighted against the
hypothetical benefit Parliament might derive from an answer, indicate the Court
should decline to answer.” In the
end, the Supreme Court chose not to take the Court Party “dance” to its
ideological conclusion by ordering Parliament to redefine marriage. Rather than be the historic scapegoat in
this pivotal matter, the Court returned the “redefinition decision” to Parliament,
ruling that the state can either “retain” or “change” the definition, as long
as same-sex “union” is addressed. Their
ruling caused so much interpretive confusion, that the Liberals continued to
claim the Charter demands same-sex marriage and the Conservatives took the
opposite view. Henceforth, the Liberals
argued that only the notwithstanding clause could stop same-sex marriage. After the June 2005 vote in favour of same-sex
marriage, Justice Minister Irwin Cotler reiterated the Government’s strategy: “Where
a law has been found to be unconstitutional, the only options open to
Parliament are to either remedy the unconstitutionality - which is what we are
doing with Bill C-38 - or to overrule that court decision by invoking the
notwithstanding clause."[xxiii]The impact of the legal precedence
behind this single sentence for the future governance of society is
titanic. The state has in effect
declared Canadian governance to be founded upon a homosexist model, protected by a constitution that is an evolving “living
tree” rooted uniquely in the minds of nine Supreme Court justices, and only the
use of the notwithstanding clause can override their interpretations. Only the notwithstanding clause can prevent
the imposition of the homosexist worldview upon Canadian society.

In his speech before the House, on
February 16, 2005, Prime Minister Martin literally declared that the democratic
will of Canadians can and will be thwarted.
Our Constitution, according to him is there to impose homosexism upon
Canadian society. He said:

The
second argument ventured by opponents of the bill is that government ought to
hold a national referendum on this issue. I reject this – not out of a
disregard for the view of the people, but because it offends the very purpose of
the Charter. The Charter was enshrined to ensure that the rights of minorities
are not subjected, are never subjected, to the will of the majority. The rights
of Canadians who belong to a minority group must always be protected by virtue
of their status as citizens, regardless of their numbers. These rights must
never be left vulnerable to the impulses of the majority. We embrace freedom and equality in theory,
Mr. Speaker. We must also embrace them
in fact.[xxiv][my underline –
three millenniums of traditional marriage is hardly an impulse, homosexists are
the ones on the offensive, heterosexism is what’s under assault]

Claiming to “square the circle” in the
zero-sum same-sex marriage decision, Mr. Martin declares: “This bill protects minority rights.
This bill affirms the Charter guarantee of religious freedom. It is that straightforward, Mr. Speaker, and
it is that important.”[xxv]

What is straightforward is the
unavoidable collision of heterosexist and homosexist worldviews, homosexual
rights and religious freedoms. In its
ruling on same-sex marriage, the Supreme Court addressed the “allegation” that redefinition of
marriage would create what has been labeled a “collision of rights.” In
facing this charge, the Court Party further demonstrated its willingness to
“dance.” In declining to respond to the
Government’s Question #4, the Supreme Court defended its position by asserting “the federal government has stated its
intention to address the issue of same-sex marriage legislatively regardless of
the Court’s opinion on this matter.” Yet in its dismissal of the “allegation” of a “collision of rights,” the Court argued, “The Proposed Act has not been passed, much less implemented. Therefore, the alleged collision of rights
is purely abstract…Charter decisions should not and must not be made in a
factual vacuum.” This argument also
contradicts the Court’s interpretation that same-sex litigants in lower court
rulings “have relied upon the finality of
the decisions and have acquired rights which are entitled to be
protected.” These irrationalities
aside, the Supreme Court in its ruling referred to the Canadian values of “tolerance, respect and equality.” Given these noble tenets, it is ironic that
redefinition of marriage will symbolize the full shift from “toleration and
equality” laws to “indifference and sameness” rulings. And in its pursuit of indifference and
sameness in governance, the state has chosen homosexual lifestyle advocacy over
“respect” for established marriage values, traditional family values and
orthodox religious values. Thus far
only a few thousand homosexual couples have registered for same-sex
marriage. As a percent of all couples,
this number amounts to 0.015 percent.
Tyranny of the majority by the minority is not mutual tolerance, is not
mutual equality and is not mutual respect.

[iii] Jody
Freeman, “Defining Family In Mossop v.
DSS: The Challenge of Anti-Essentialism and Interactive Discrimination for
Human Rights Legislation.” University of Toronto Law Journal 44,
1994, p95, as cited in David Raymond Greener, “Deconstructing Family: A Case
Study of Legal Advocacy Scholarship.”
M.A. thesis, University of Calgary, 1997, p.59.

[vi] Didi
Herman, “The Good, the Bad and the Smugly: Sexual Orientation and Perspectives
on the Charter,” Charting the Consequences:
The Impact of the Charter of Rights on Canadian Law and Politics, Ed. David
Schneiderman and Kate Sutherland (Toronto ON: Toronto Press, 1997), 200-17,
cited in Morton and Knopff, p.142.

[xxii] The name
“Marriage Reality” was chosen for this website because of the Supreme Court
assertion that we are in a new reality, a non-heterosexist reality, what I have
labeled as a homosexist reality. This
website is devoted to refuting the imposition of a “false” homosexist
worldview.